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Posted on November 5, 2008June 27, 2018

Hartford Announces Job Cuts

The Hartford Financial Services Group Inc., which reported a $2.63 billion third-quarter loss last week, said it planned to cut 500 jobs, or about 1.6 percent of its workforce, in an effort to trim costs.


A spokeswoman said the job cuts, as well as other expense reductions, are intended to cut $250 million in expenses. She said she did not have a figure for how much the job cuts alone would reduce expenses.


All 500 jobs will be eliminated this month, the spokeswoman said. No additional cuts will be announced in December, she said, but “we may have some additional reductions in 2009, and those would be part of the … $250 million we talked about.”


The spokeswoman said that about 125 of the cut positions will be in the greater Hartford, Connecticut, area, where Hartford is based, and the remaining 375 in other locations throughout the company.


In a statement issued Monday, November 3, Hartford chairman and CEO Ramani Ayer said, “The Hartford remains well capitalized.” The statement was issued in response to New York-based Moody’s Investors Service’s downgrading Hartford’s senior unsecured debt rating to A3 from A2 and its short-term debt rating to Prime-2 from Prime-1, with a stable outlook.


Moody’s also affirmed the Aa3 insurance financial-strength ratings of the company’s lead property and casualty and life insurance operating companies. It affirmed a stable outlook on the property/casualty business and a negative outlook on the life insurance business.


Filed by Judy Greenwald of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.


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Posted on November 5, 2008June 27, 2018

Next Market Loser Deferred Compensation

As large corporate pension plans plunge deeper into the red, there’s more on the line than just retirement benefits for rank-and-file workers. Pension benefits for top executives may soon be in jeopardy too, thanks to regulations put in place a few years ago.


Tucked into the Pension Protection Act of 2006—which was designed to shore up the funding levels of corporate pension plans, among other things—is a provision that says companies with defined-benefit plans that are funded only 60 percent or less may not set aside money for nonqualified pension plans for executives, including supplemental executive retirement plans, or SERPs.


While this rule received little notice in the heady days of 2006, it’s bound to get more attention given the deterioration in the funded status of many companies’ defined-benefit plans this year. Some experts predict that collectively, large corporations could end the year with their pensions more damaged than ever before.


If that proves to be the case, companies with the most severely underfunded pensions would be subject to the new rule, which was created to encourage executives to make significant contributions to their workers’ defined-benefit plans and keep the funded status of these plans from approaching precarious levels. It was hoped that the rule would help prevent companies from terminating or freezing traditional pension plans.


“The thinking was that executives shouldn’t be able to have money set aside for their personal pension plans if they’re not doing an adequate job of funding their employees’ pensions,” said Gregory Ash, a partner in the employee benefits practice of law firm Spencer Fane Britt & Browne. “If workers are in danger of losing their retirement benefits, then the PPA says there should be consequences for executives as well.”


This may not single-handedly propel executives to make larger-than-required contributions to their workers’ defined-benefit plans, “but it does give them a personal interest in the health of their workers’ pensions,” noted Howard Silverblatt, a senior analyst at Standard and Poor’s. “And many of these pensions, right now, appear as if they could be on life support.”


Silverblatt estimates that the defined-benefit plans of companies in the S&P 500 are currently underfunded by more than $200 billion combined, in contrast to the $63 billion surplus they boasted at the beginning of the year. If equity markets don’t improve, or if corporate bond yields decrease (which would cause companies to calculate a larger stream of pension liabilities), these large plans could easily end the year being more underfunded than they were in 2002, when their collective deficit was a record $219 billion.


Ordinarily, Silverblatt said, it’s unusual for a plan’s funded status to fall below 60 percent. Last year, for instance, only four of the 100 largest companies—Delphi, Procter & Gamble, ConocoPhillips and Delta—had funding levels that were below 80 percent, according to data compiled by actuarial and consulting firm Milliman. Delta, with a funded status of 66 percent, had the most underfunded plan among the group.


“Companies don’t usually see their plans get to that point unless there are extraordinary circumstances and they’re in great distress,” Silverblatt said. “But these are obviously very unusual times, so anything is possible.” He said the funding restrictions on executive pensions could wind up applying to more than just one or two companies.


Executives at any companies that may be subject to this provision would also be faced with a number of other issues related to their workers’ pension plans, of course, which could have significant implications for their employees.


Under another provision in the Pension Protection Act, companies with defined-benefit plans that are only 60 percent funded may be forced to freeze their plans, said Kenneth Raskin, head of the executive compensation, benefits and employment practice at law firm White & Case. He also noted that when funding levels fall below 60 percent, the Pension Protection Act limits the distributions that can be made to participants. Most notably, workers are not permitted to take full-value lump-sum payouts.


“So if your funded status falls that far, you are probably in pretty bad shape on a number of levels,” Raskin said. “Losing some funding for your executive benefit will likely be the least of your concerns.”


Filed by Mark Bruno of Financial Week, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.


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Posted on November 5, 2008June 27, 2018

S&P Shifts Outlook on U.S. Health Insurers to Negative

Standard & Poor’s Corp. has revised its outlook on U.S. heath insurers to negative from stable.


The New York-based rating agency cited several factors in lowering its outlook, including pressure on earnings, a weaker economic forecast and unfavorable results. The change means that over the next 12 to 18 months, S&P expects the number of downgrades to exceed upgrades in that sector.


Health insurers, however, are not facing the level of investment and equity market losses hampering other financial institutions, nor do they appear to face “product-linked liquidity concerns,” S&P said.


But U.S. job losses, small-business failures and government budgetary shortfalls likely will weigh on health insurer revenues, the rating agency said.


“Furthermore, we believe the challenging operating environment could expose errors in strategic judgment and execution of business fundamentals (such as predicting medical trend and pricing to it) that would have had less of an impact on the bottom line when growth was high and operating margins were more robust,” S&P said.


Filed by Roberto Ceniceros of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.


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Posted on November 5, 2008June 27, 2018

Survey DC Plans With Unbundled Providers to Add Options

Fifty-four percent of public and private defined-contribution plans that use unbundled providers said they plan to add to their lineup of investment options in the next 12 months, compared with 35 percent of those plans that use bundled services, according to a Spectrem Group report.


Also, DC plans using unbundled providers are likely to add employer stock, high-yield bonds and target-date funds as new investment choices, the report said. Twenty-five percent of DC plans using unbundled providers plan to offer employer stock and high-yield bonds, while 22 percent are going to offer target-date funds and 19 percent corporate bonds. Similar data were not available for DC plans using bundled providers.


The report, “Investment Manager Selection in the Defined Contribution Investment Only Market,” said DC plans using service providers that purchase unbundled services tend to offer fewer investment options (16) to their participants than those using bundled services (19).


The report also said strong performance and low investment management fees were the criteria ranked as most important in the selection and evaluation of plan investment providers.


The Spectrem report was based on data taken in May and June from 1,052 DC plan executives who were responsible for the evaluation and selection of plan service providers.


Filed by John D’Antona Jr. of Pensions & Investments, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.


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Posted on November 5, 2008June 27, 2018

Dear Workforce How Do We Clearly State Changes to Our Salary Structure

Dear Money Talk:

The short answer is to be upfront with them. While your question is not specific as to whether you are planning negative or positive changes, it is nevertheless critically important that you inform your employees concerning as much of the detail as you can share. If major changes will occur, and you don’t tell them about it, then they will make up stories about what you are really trying to do.

Once the rumor mill gets going in full force, it’s hard to stop. These stories will be wild, but in the absence of information a huge amount of misinformation will fill the vacuum. The result is overreaction. The company runs the risk of increased turnover, and your high performers are the ones who will generally jump ship if they feel that it is sinking.

Determining what and how to effectively communicate can be daunting. Start with a detailed communication plan, and in doing so consider:

  • What are the critical business changes are driving these changes?
  • When are the compensation plan changes occurring?
  • Who are the audiences that need to be aware of these changes? (Chances are, there are several different audiences for pay plans).
  • What does each audience (managers, employees, others) need to know and understand about the changes?
  • What do managers and employees need to do differently as a result of our program changes?

One of the most critical components of any communication plan is defining the right communication vehicles. Effective communication strategies include multiple delivery methods. In addition, sharing information can take place in a number of contexts.

Company newsletters, while not the best way to disseminate this type of sensitive information, can help set the stage for upcoming meetings, such as weekly staff meetings or other departmental gatherings. Planning the right vehicles for communications means analyzing the following questions:

  • Which are the most effective ways of delivering our messages?
  • Which vehicles are currently available?
  • How do employees prefer to receive information about important program changes?
  • How do managers and employees typically get their information at our company?
  • How can we create opportunities, within certain parameters, for questions, ideas and constructive feedback?

In your meetings, make sure you devote enough time for questions and answers.

The key to communication is to build employee understanding of, not necessarily agreement with, the changes you are making. If the changes are going to have a particularly negative impact, then achieving a level of acceptance with employees probably should not be a goal of the communication, while it may be an important goal with managers.

Provide specific information that is factual, has an underlying business rationale and clarifies your key messages. This includes the effective date of the change, what you expect employees and especially managers to do differently, and how managers and employees can get answers to questions.

Tell them upfront what you are trying to accomplish. This fills any information void and helps ensure your message is delivered successfully, and with a minimum of “water cooler” disruption to the business.

SOURCE: Bob Fulton, the Pathfinder’s Group Inc., Chicago, October 9, 2008

LEARN MORE: Please read a discussion on disclosing salary requirements when posting job ads.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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Dear Workforce Newsletter
Posted on November 5, 2008June 29, 2023

Merit Pay Produces Pay Discrimination

Mounting evidence indicates that individual-pay-for-performance plans do not improve organizational results. Worse yet, research shows merit pay and other individual performance-based rewards may generate discernible patterns of pay discrimination linked to gender, race and national origin.


    A new and particularly compelling study indicates that even when women and minorities receive the same starting salaries and performance ratings for doing the same job under the same supervisor, their merit increases are smaller than those awarded to their white male counterparts.


    The study, conducted by Emilio Castilla, assistant professor at MIT’s Sloan School of Management and a visiting professor at New York University, analyzed the internal records on 8,898 support staff at a large high-tech service-sector company with a workforce of 20,000. The company sits at the cutting edge in research and information technology, prides itself on its diverse workforce and strives for best-company-to-work-for status.


    But its merit pay plan produced gender- and race-based pay issues. “The disparities are small but very real,” Castilla says. “And any difference is evidence of bias.


    “When I presented the findings, the executives were shocked and immediately asked for recommendations to remedy the problem,” Castilla recalls. “The company was full of good intentions, but completely unaware of the unintended consequences of its performance system.”



“The company was full of good intentions, but completely unaware of the unintended consequences of its performance system.”
—Emilio Castilla, assistant professor, Sloan School of Management, MIT

    Like many organizations, the company separates performance evaluations and ratings from pay-increase decisions to ensure that rewards are allocated on the basis of merit. “The separation of the two stages—the performance evaluation and assigning the increase—can be temporal or involve different actors,” Castilla says. “Research shows that when they are not separated, managers manipulate the ratings to pay some employees more.”

    Although the company in the study separated the two stages, it still allowed unit heads some discretion to decide, for example, that an employee with a “five” rating was really a “high five” who warranted a larger increase than that given to others with the same rating.


    “The unit heads were not accountable for the discretion they exercised within the small latitude of increases for each rating,” Castilla says. “HR had to approve the merit increases recommended by the unit heads, but it basically rubber-stamped the decisions.”


    The company responded to Castilla’s findings by making the unit heads more accountable and assigning an exact increase for each rating. “You can still provide some difference and discretion, but the same formula must apply to all employees,” Castilla says. “Some units, for example, may bring in more revenues, so within that unit, the range of salary increases might be higher and all top performers in that unit would receive a higher increase than top performers in other units.”


    Pay transparency across the workforce is necessary to control bias, Castilla says. “Companies need to communicate the salary increase associated with each rating. This is another mechanism for correcting pay disparities.”


    Castilla has presented his study at several conferences. “Compensation directors tend to minimize the findings,” he says, “but the federal enforcement agencies have shown an interest.” Given the size of the study and the tight controls Castilla used, the findings represent a clear warning for any employer using a merit pay plan.


Workforce Management, November 3, 2008, p. 36 — Subscribe Now!

Posted on November 5, 2008June 29, 2023

Special Report Compensation & Salary Forecast—Where’s the Merit-Pay Payoff

W hen Verizon Business announced the completion of the first next-generation trans-Pacific undersea optical cable system in September, senior vice president for human resources Robert Toohey was buried in budget decisions. “A big struggle is deciding whether you invest more in merit pay or short-term incentives,” he says. “Am I going to get more out of higher bonuses or a 2 percent increase in fixed pay through merit increases? Which will drive employees to perform better?”


    Verizon Business, based in Basking Ridge, New Jersey, is one of the three operating units of Verizon Communications. The unit generated $21.2 billion in revenue in 2007 and employs 32,000 workers world­wide. Pay decisions carry huge consequences. “You can’t walk into finance and tell them you want to spend another $50 million on merit pay without a business case,” Toohey says.


    Human resources executives help manage the $4.5 trillion that U.S. corporations are spending on wages and salaries in 2008 and determine how to distribute the $200 billion increase in wage and salary spending for 2009. Most of this increase will take the form of merit pay, the nearly universal method for distributing wage and salary raises across the U.S. and, increasingly, around the world.


    A large part of the remainder will go to a complex array of incentive plans. Spending on variable pay plans for salaried exempt employees as a percentage of payroll will reach 10.6 percent in 2009, with 90 percent of all organizations using at least one variable plan, Hewitt Associates says.


    The seemingly self-evident premise underlying merit pay and other individual performance-based pay plans is that they produce higher employee and organizational performance. Most companies, however, do not test the actual impact of performance-based rewards on employee behaviors and financial results. The most comprehensive empirical studies flow from the academic world, where evidence is mounting that the assumptions underlying individual performance-based pay programs are wrong.


    With the drive for evidence-based management now moving across all corporate functions, the sheer force of intuitive practices and the shortage of obvious alternatives no longer suffice as justifications for rewards programs that tear into corporate resources. The real question posed by the best research is not whether companies should be spending more for individual performance pay programs, but whether they should be spending less.


Meritless Pay
    One of the most forceful advocates for evidence-based management is Jeffrey Pfeffer, the Thomas D. Dee II professor of organizational behavior at Stanford University’s Graduate School of Business. Drawing from his own work and citing three decades of empirical studies, Pfeffer testified before a 2007 congressional hearing on federal personnel reform that the idea that individual pay for performance will enhance organizational performance rests on a set of assumptions that do not hold in the vast majority of organizations.


    Pfeffer, with the full support of other recognized experts, continues to sharpen the challenge that now sits squarely before human resources executives and compensation directors.


    “The evidence is overwhelming that individual pay for performance does not improve organizational performance except in very limited cases,” he says. “Why do people, when confronted with the facts, turn their backs on them?”



“The evidence is overwhelming that individual pay for performance does not improve organizational performance except in very limited cases. Why do people , when confronted with the facts, turn their backs on them?
—Jeffrey Pfeffer, professor, Stanford University Graduate School of Business

    Given the lack of evidence that merit pay boosts employee performance and organizational results, should companies abandon it?


    “We’ve already abandoned merit pay,” Pfeffer says. “Merit pay is not based on merit. Performance evaluations are biased; overwhelming studies show this. Even if merit pay was based on merit, the pay increases are not enough to motivate employees, but they are enough to irritate them.”


    Survey reports show years of flat merit increase budgets that barely meet inflation rates and bear no relationship to productivity growth or profitability trends. The major salary budget surveys point to 2009 merit increases averaging 3.6 to 3.8 percent, with the highest performers receiving 5.6 to 6 percent. In effect, for the vast majority of employees, merit increases are unevenly distributed cost-of-living and market-adjustment increases couched in the language of performance rewards.


    Even when companies create seemingly significant pay differentiation between low and high performers, the actual cash increase is insufficient to sustain performance—or it drives the wrong behaviors, Pfeffer says. And, as many studies show, high levels of differentiation destroy engagement, breed distrust and undermine teamwork.


    A series of experiments conducted by Hewlett-Packard in the 1990s verified longstanding academic studies demonstrating that high incentives for top performers adversely affect organizational performance. Despite the deluge of consultants calling for companies to boost pay differentiation, Pfeffer cites dozens of studies showing that more dispersed pay distributions generate higher turnover, lower quality and a vast array of unintended results, including serious ethical breaches and business-killing behaviors.


    “Individual performance pay plans cost a lot of money and upset everyone,” Pfeffer says. Perhaps more important, when companies overestimate the power of financial rewards to affect behaviors, they neglect critical skills development and strong leadership, which Pfeffer and other experts agree play a more central role in raising organizational performance.


    “Effective management is a system, not a pay plan,” Pfeffer notes. “The mistake is that companies try to solve all their problems with pay.”


    At Verizon Business, Toohey takes a more holistic view. “I take it beyond pay,” he says. “When an employee leaves, does he leave for more money? Managers will say that the employee had a better offer. But why did the employee pick up the phone and call the headhunter in the first place? Was the employee trained and developed? Was there proper management? Are you spending the appropriate amounts on training and do employees know how much you are spending? You must have the right data to determine any of this.”


Building the Evidence
    At the heart of the performance pay problem sits the assumption that correlation implies causation. That assumption continues to pervade decision making in human resources and pay plan design.


    “There is the inferential issue,” Pfeffer says. “The CEO drank Wild Turkey; the company performed well; ergo, all CEOs should drink more Wild Turkey. The company uses individual incentives; the company performs well; ergo all companies should use more incentives.”



“Improved employee performance
may or may not lead to better business performance. … When companies
pay more, business performance
is better. But you have to spend
time to determine if this is
predictive and causal.”
—Mark Ubelhart, principal,
Hewitt Associates’ Human Capital Foresight practice

    Toohey encounters the difficulty of separating correlation and causation at Verizon Business. “I can look at training dollars for a sales channel and the performance of that sales channel. But does that tell me the training improved performance, or does it mean that the channel had really talented people to begin with?” Without the necessary data collected over time, the actual determinants of performance cannot be verified.


    Distinguishing correlation from causation is a substantial part of the evidence-based approach to workforce management and pay plan design. “The first step is to know what the evidence says,” Pfeffer says. “Know the research literature that pertains to your business. Diffusion and persistence do not prove effectiveness.”


    The second step is to run experiments. In companies with multiple sites or divisions, HR executives and compensation directors can take the opportunity to learn by doing. Pfeffer advises executives to run performance pay programs in specific units and test the results. “It’s not that hard to do,” he says. “Many organizations do not run one consistent pay plan throughout the company, and no law says you have to.”


    “Treat the organization as a prototype,” Pfeffer says. For research models, HR executives can look to marketing, particularly Internet-based marketing, where departments are constantly researching, testing and redesigning. It is critical, he emphasizes, to collect data in a way that does not simply confirm existing biases about pay and behavior.


    The objective is to move away from the assumptions that continue to shape pay plan design but are inconsistent with logic and empirical studies. “Evidence-based management is a way of thinking and being open to learning, as opposed to assuming that we already know, which is the ideological view supported by casual benchmarking,” Pfeffer says.


    “It comes down to how we educate people as executives and HR executives. The goal is to transform human resources into the R&D department for the human system, which is the most important system in almost all organizations,” Pfeffer says. “HR executives have to change how they think about their jobs.


    “In R&D, you go into the laboratory, you experiment and you keep up with the research that others do. You are not involved in rule enforcement but in value creation for the organization through learning and experimentation. Can you imagine walking into the R&D lab at a pharmaceutical company, asking the chief chemist about an important new study and having him respond that they don’t keep up with the literature in chemistry?”


Clearing the Obstacles
“In the whole area of pay for performance, HR has been deficient,” says Mark Ubelhart, principal in Hewitt Associates’ Human Capital Foresight practice. “When companies look at performance pay design, they look at their business strategy and prevalent practices and best practices, but you have to go beyond benchmarking.


    “Improved employee performance may or may not lead to better business performance,” Ubelhart says. “Hewitt studies show that when companies pay more, business performance is better. But you have to spend time to determine if this is predictive and causal. And if you have a good company, spending more on performance pay has to make it an even better company for there to be a causal relationship.”


    The obstacles to building an evidence-based approach are substantial, but not insurmountable. “The first problem is talent,” Ubelhart says. “You have to apply rigorous academic techniques to the performance pay issue. A lot of companies have talented professionals in human resources, but to migrate to a decision science, you have to have the in-house talent or tap it from outside. Companies are now trying to bring in analytical expertise.”


    The second problem is data. “The company has to access its own data on human capital and use it,” Ubelhart says. “We are absolutely seeing signs that this is changing. And investors want data on human capital. Not long ago, investors only looked at executive compensation, but now they are looking at human capital.”



“Effective management is a system, not a pay plan. The mistake is that companies try to solve all their problems with pay.”
—Jeffrey Pfeffer. professor, Stanford University Graduate School of Business

    The third problem is the need for a common language. “You need standardized metrics for reporting, and this is beginning to emerge,” Ubelhart says. “Once one or two companies disclose human capital metrics in specific terms, CEOs will demand that their HR departments disclose human capital data as well. In two to three years, we will see HR migrate to analytics for broader disclosure, but for people with a classic HR background, it’s quite challenging.”


    Emilio Castilla, assistant professor at MIT’s Sloan School of Management and a visiting professor at New York University, advises HR executives to pursue collaboration with academic researchers. “HR has tended not to be open to collaboration or research or even to understanding the tools involved,” he says.


    “The very top executives at companies are more open to collaboration,” Castilla says. “HR is more resistant at companies where the HR function is viewed as an administrative function and the HR executive is not part of the top executive team. Where they are part of the top executive team, they are more open to collaboration.”


    Castilla reports that some HR executives are closing the knowledge gap between practitioners and academics through two methods. First, they follow the curricula at the top business schools and participate in university seminars and colloquia. Second, they call in academic experts to collaborate on research work. Both methods can produce a knowledge transfer that builds data for evaluating pay plans.


    Pfeffer notes the existing evidence points to group bonuses, profit sharing and gain sharing, which is a form of profit sharing, as more effective forms of performance-based pay than merit pay or individual incentives. “Group plans are more collective and recognize the interdependent nature of work today,” he says. “Most employees look at their total compensation and want to see that they share in the success of the organization.”


    Whether a pay plan is individual or group-based, the point is to put evidence behind the assumption that it improves organizational performance, or if the evidence is not affirmative, to make the appropriate business decision. “We’ve seen finance and marketing migrate to a decision science on spending issues,” Ubelhart says. “Now it’s HR’s turn.”


Workforce Management, November 3, 2008, p. 33-39 — Subscribe Now!

Posted on November 5, 2008June 27, 2018

A Cool Head Under Pressure

For 401(k) plan sponsors, these times may seem like the ultimate test. Just as many employers have put in place automatic enrollment programs for their 401(k) plans and added target-date funds as defaults, markets across the board have cratered, leaving benefits-center phones blaring. So now what?


    Right now, the best action for plan sponsors is to keep a cool head. That, for the most part, means business as usual. Are the plan’s funds behaving as expected on a relative basis? Are the service providers sound? Are participants getting the right messages?


    Still, the current market turmoil does create a few wrinkles.


    For example, many plan sponsors will find that this is the first major market decline ever experienced by their target-date funds. Even target-date funds that have been around for a full market cycle have, in many instances, experienced dramatic changes to their investment approach over the past several years, effectively making this their first bear- market test. What expectations were laid out in terms of how the target-date fund would navigate such an environment? Is this claim playing out in terms of actual performance? Is the target-date fund’s exposure to certain markets and certain sectors in line with expectations relative to their stated glide path? And if not, what rationale does the fund manager have for the change in strategy?


    Stable-value funds are another unique animal, and particularly challenging in the current environment. Like other short- duration bond funds, the underlying investments in many stable-value funds have not performed well. Now more than ever, it is important for plan sponsors to require extreme transparency and to closely monitor the performance of the underlying investments within the stable-value fund. Other crucial steps include evaluating the type of insurance wraps (which provide the stability of the stable-value fund) used by the investment manager and understanding the scenarios under which the wrap providers supply protection to the fund.


    If the plan has a money market fund, the plan sponsor will want to understand whether the fund is participating in the U.S. Treasury temporary guarantee program for money markets, and just how important that participation is. For example, are the underlying securities of the money market fund impaired? Or is the guarantee important to participants just from a psychological perspective?


    Essentially, what plan sponsors are looking for here are red flags that indicate a fund change may be required. Either way, it will be prudent to formalize this due diligence so that a written record is maintained showing that a thorough review was undertaken. In a similar vein, now more than ever, it will be important to make sure that an up-to-date investment policy statement is in place. Among other things, it can help guide the investment committee, and keep decision-making rational.


Reacting without overreacting
   In some instances, reacting quickly and decisively to the current environment really is necessary. For example, is the plan’s record keeper exposed to or affiliated with a financial services company that has collapsed, been purchased, or is teetering on the brink? If so, it will be essential to promptly examine the potential impact on plan delivery. Plan assets, of course, won’t be at risk, given that they are held in trust for participants. However, serious service disruptions could be possible. At a minimum, a due diligence meeting should be conducted. It may even be necessary to undertake an actual record-keeper search.


    In a measured way, plan sponsors will also want to take the current market environment into account in the execution of any plan changes. This is not to say that plan sponsors should be reluctant to proceed with strategic plans to replace a fund, change the composition of the fund lineup, or even implement a new record keeper. It is impossible to predict when the market will be calmer—and for how long. However, it is still important to recognize that market volatility is likely to cause plan participants to be hypersensitive to changes, and this should be taken into account.


    For example, plan sponsors who are seeking to eliminate a company stock fund will wish to be especially cautious about allowing ample time between the announcement of the change and the actual event itself so that participants can understand that the move is strategic, and so that they can choose how and when to transfer the money on their own. This might also be a time to consider cutting-edge approaches such as the Shlomo Bernartzi’s “Sell More Tomorrow” program, which is effectively a mechanism to dollar-cost-average over time out of employer stock.


    Even when it comes to diversified funds, participants may be susceptible to concerns about “locking in their losses” within funds that are being replaced due to performance (or other) issues. This may tempt the plan sponsor to freeze the fund instead of replacing it. However, it is difficult to rationalize why a fund that is not suitable for ongoing contributions is a reasonable place for existing participant monies. Further, the 2006 Pension Protection Act did provide considerable guidance (and protection) around fund mapping, which should provide plan sponsors with some comfort. Again, communication will be key. Given the current circumstances, plan sponsors may wish to allow more time than usual to communicate fund changes, and to allow participants to move monies out of the fund prior to the mapping exercise, if they choose.


    Note that none of these recommendations involve changing plan features or investments in reaction to short-term market volatility. For example, it may be tempting to replace or augment the plan’s stable-value fund with a money market vehicle. But is the addition of such a vehicle really consistent with the long-term focus of the retirement plan? Is it even feasible, given 12-month put options and other limitations that tend to be in force? Likewise, it may seem appealing to add a low-correlation gold fund in hopes of improving diversification. However, plan sponsors will recall that it might also have seemed like a good idea to add a technology fund in 1999 and an REIT fund in 2005. Adding “hot” funds often simply leads to market timing by participants, not improved diversification. Also, plan sponsors could inadvertently send a message about the market to participants through such changes. In the example above, the addition of a money market fund could suggest to participants that the plan sponsor believes this is a good time to get out of equities.


Preventing participant panic
   Of greatest importance, perhaps, is the need for plan sponsors to allay the fears of participants by providing them with a context for what they are seeing in the markets. Record keepers have not been reporting an all-out panic by participants, but they do indicate that benefit-center call volume has risen significantly, Web site hits have soared, and transfer activity from equity to fixed-income funds is higher. Many record keepers have already posted content to their Web sites on topics ranging from historical market volatility (e.g., the 1973-1974 bear market and subsequent recovery) to how stable the record-keeping organization is. Participants also need to be reassured regarding the fact that they ultimately own their 401(k) account—not the company or the record keeper. Concepts such as how the plan’s funds work, the dangers of market timing and the concept of rebalancing will also need to be reinforced.


    Above all, it will be important for plan sponsors to lead by example, and keep a cool head in what is clearly a very challenging environment.

Posted on November 5, 2008June 27, 2018

Arizonas Immigration Sanctions Law Affirmed

The Legal Arizona Workers Act, a state law that went into effect January 1, 2007, required Arizona employers to use the federally operated E-Verify employment verification system, a database for checking work eligibility and Social Security numbers, to confirm their employees’ work authorization, and penalized employers for hiring illegal immigrants by revoking their business licenses. The use of E-Verify is voluntary under current federal immigration law, but became mandatory under the Arizona law.


    A coalition of business and immigration rights groups filed suit in the Phoenix-based U.S. District Court for the District of Arizona, alleging that the act was pre-empted by federal immigration laws and violated due process by denying employers the opportunity to challenge any determinations of the work authorization status of employees before sanctions were imposed. After the district court rejected the claims and upheld the act, the plaintiffs appealed.


    The U.S. Court of Appeals for the 9th Circuit, based in San Francisco, upheld the district court’s determination that Arizona’s law is a “licensing law” as permitted under a savings clause in the federal immigration law, and thus not pre-empted by federal immigration law. It also held that due process rights were not violated because “an employer’s opportunity to present evidence at a hearing in a superior court, in order to rebut the presumption of the employee’s unauthorized status, provides the employer a meaningful opportunity to be heard before sanctions are imposed.”


    The 9th Circuit also observed that, with respect to the Legal Arizona Workers Act, “other challenges to the Act as applied in any particular instance or manner will not be controlled by our decision.” Chicanos por la Causa Inc. v. Napolitano, 9th Cir., No. 07-17272 (9/17/08).


    Impact: Employers should monitor state and local regulations as they impose legal obligations with regard to obligations to confirm the work status of applicants and employees.


Workforce Management, October 20, 2008, p. 9 — Subscribe Now!

Posted on November 4, 2008June 27, 2018

Employer Groups Push for Pension Protection Act Funding Delay

Employer groups are warning Congress that many corporate pension plans could be frozen or terminated unless the pension funding requirements of the 2006 Pension Protection Act are delayed at least through next year. The funding rules started phasing in January 1.



“The drop in the value of pension plan assets coupled with the current credit crunch has placed plan sponsors in an untenable position,” a coalition of employer groups said in a Tuesday, October 28, letter to House Ways and Means Committee Chairman Charles Rangel, D-New York, and Rep. Jim McCrery, R-Louisiana, the ranking Republican member of the committee. “At a time when companies need cash to keep their businesses afloat, they are also required to make unexpectedly large contributions to their plans in order to meet funding requirements.



“These large funding obligations will, if not modified, divert assets away from job retention, job creation and needed business investments, thus increasing the number of Americans who are unemployed and slowing our economic recovery,” the letter said.



The coalition includes the American Benefits Council, the National Association of Manufacturers and the U.S Chamber of Commerce.



Even if a company freezes its plan, the company would still be forced to meet the Pension Protection Act’s full funding requirements, said Judy Schub, managing director of the Committee on the Investment of Employee Benefit Assets. The committee, which represents major corporate defined-benefit pension plans, did not sign the coalition’s letter but is also planning to lobby for Pension Protection Act relief, Schub said.



“Money is awfully tight,” she said. “You need every dollar for operations.”



Jason Hammersla, an American Benefits Council spokesman, said employer groups want lawmakers to include the pension funding relief in a fiscal stimulus package that might be considered by Congress in a possible post-election session.



“We’re looking for whatever legislative vehicle we can to get this done as soon as possible,” Hammersla said.


Filed by Doug Halonen Pensions & Investments, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.


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